The Court has allotted each party three hours for its closing argument. The government
intends to use one-third to one-half of its time for rebuttal. Although we do not suggest that the
government will engage in deliberate impropriety, the length of its proposed rebuttal raises
concern that it may reserve crucial contentions until that argument, when the defense will have
no chance to respond. In light of this concern, we submit this brief to alert the Court and the
government to the relevant principles that govern rebuttal argument. To the extent the
government's rebuttal violates these principles, we will object, seek appropriate instructions, and
if necessary request surrebuttal.

ARGUMENT

Fed. R. Crim. P. 29.1 addresses the order of closing arguments. The Advisory
Committee Note states: "The rule is drafted in the view that the fair and effective administration
of justice is best served if the defendant knows the arguments actually made by the prosecution
in behalf of conviction before the defendant is faced with the decision whether to reply and what
to reply." Courts have interpreted Rule 29.1 and the common law principles on which it rests to

Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 2 of 4

mean that "[a]s a general rule, Government counsel should not be allowed to develop new
arguments on rebuttal, but should be restricted to answering the arguments put forth by defense
counsel." Moore v. United States, 344 F.2d 558, 560 (D.C. Cir. 1965); see, e.g., United States v.
Steele, 685 F.2d 793, 802 (3d Cir. 1982). "[T]he primary purpose of the rule announced in
Moore is to protect defense counsel from surprise." Hall v. United States, 540 A.2d 442, 448
(D.C. 1988); see, e.g., United States v. Gray, 292 F. Supp. 2d 71, 91 (D.D.C. 2003) (same).

Courts have found government rebuttal arguments improper when they have presented
new theories or interpretations of the evidence. 1 In United States v. Russo, 74 F.3d 1383 (2nd Cir.
1996), for example, the court found improper introduction of a new chart column, which
reorganized information already in the record, because "[t]he prosecutor took a step beyond the
existing evidence to create a new line of argument." Id. at 1396. In United States v. Gleason,
616 F.2d 2 (2nd Cir. 1979), calculations introduced for the first time in rebuttal effectively
confronted the defendant with "a new theory (albeit based on record evidence) at almost literally
the last minute of a long trial," and thus "[f]airness would dictate that a copy be furnished to
[defendant] well enough in advance of its use to permit a reply." Id. at 26. And in Steele, the
government's rebuttal introduced a new factual interpretation, supported by a chart, and thus
"denied the defendants the opportunity to respond and rebut [its] contentions." 685 F.2d at 802i
see also, e.g., Bailey v. State, 440 A.2d 997, 1000-04 (Del. 1982) (reversing conviction where
prosecution "sandbagged" defense by reserving bulk of argument until rebuttal); Presi v. State,
534 A.2d 370 (Md. Ct. Spec. App. 1987) (reversing conviction where prosecutor referred to

--1 Other forms of improper argument, although not peculiar to rebuttal, are particularly likely to cause
prejudice and lead to reversal at that stage, because defense counsel have no opportunity to respond. See, e.g.,
United States v. Holmes, 413 F.3d 770, 776 (8th Cir. 2005); United States v. Carter, 236 F.3d 777, 793 (6th Cir.
2001).

2

Case 1:05-cr-00394-RBW Document 299 Filed 02/20/2007 Page 3 of 4

financial records in rebuttal that had not been addressed in initial prosecution closing or in
defense closing).

A recent case from the United States District Court for the Southern District of Texas
demonstrates the limits on rebuttal argument. In United States v. Nguyen, 2006 U.S. Dist.
LEXIS 36401 (S.D. Tex. June 5, 2006), the court granted a new trial because of the government's
improper surprise rebuttal. The rebuttal argument turned on the flight itinerary of one of the
defendants, which had been mentioned only in passing during the trial. Although the rebuttal
argument responded to a defense argument that the defendant was at the scene of the drug
transaction as a bystander rather than as a participant, the court found that "the government had
ample opportunity to engage this argument during its initial closing." Id. at *3. Because the
government waited until rebuttal to make an argument it could readily have made in its initial
argument, and thus denied the defense an opportunity to respond, the court concluded that even
surrebuttal (which it had permitted) did not cure the prejudice. See id. at *5; see also United
States v. Nguyen, 2006 U.S. Dist. LEXIS 37142 (S.D. Tex. June l, 2006).

To ensure that Mr. Libby's right to a fair trial is protected, we will monitor the
government's lengthy rebuttal argument closely in light of the limits set out above, object where
appropriate, and if necessary seek curative instructions and surrebuttal.